“We have too much become used to seeing only two alternatives in this Court – either a writ petition or an arbitration as if to suggest that the most basic form of litigation, a regular civil suit, no longer exists.”
The Bombay High Court on Thursday observed while dismissing a plea claiming the existence of an arbitration agreement. A Single Bench of Justice GS Patel made this observation in an arbitration petition filed by Dhargalkar Technoesis (I) Pvt Ltd (DTIPL), seeking reference of contractual disputes between itself and the Mumbai Metropolitan Regional Development Authority (MMRDA) for arbitration.
V.P. Sawant, a Senior Advocate for the Petitioner, has submitted that there is a valid and binding arbitration agreement, it would be left with no remedy if the application is rejected.
Ajay Khaire, Counsel for the MMRDA, submitted that the Supreme Court itself held that the main attribute of any arbitration agreement is consensus ad idem, a meeting of minds, to refer disputes to arbitration. If this is missing, there is no arbitration agreement.
The Court held, “We have too much become used to seeing only two alternatives in this Court – either a writ petition or an arbitration as if to suggest that the most basic form of litigation, a regular civil suit, no longer exists.”
The Supreme Court in Jagdish Chander v. Ramesh Chander & Ors. had held that the absence of words like arbitration and arbitral tribunal or arbitrator are not determinative. In that case, the Supreme Court held that the agreement must, however, have the following attributes of a valid arbitration agreement:
(a) the agreement must be in writing;
(b) The parties must have agreed to refer any present or future disputes to the decision of a private tribunal.
(c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving the parties due opportunity to put forth their respective cases.
(d) The parties should have agreed that the decision of the private tribunal in respect of the disputes will bind them.
After perusing the clause on the settlement of disputes, the Court came to the conclusion that it does not satisfy all the elements of a valid arbitration agreement. All observations in this order are only for the purposes of this Section 11 application. I have not addressed any of the disputes between the parties on merits. All contentions of the Applicant for an appropriate civil proceeding are expressly kept open, the Court said.